Objectively justified officer belief okay

September 30, 2009

By Mike Novakowski

Since the grounds for arrest were objectively justified, there were no s. 8 or 9 Charter breaches in a drug case, Ontario’s highest court has held.
In R. v. Murtezovski, 2009 ONCA 423, police intercepted a package addressed to “K. Woodhouse” that contained three bricks of cocaine. It was removed and replaced with three similarlooking bricks containing flour and 20 grams of cocaine in the wrapping of one of the bricks.
They arranged for a “controlled delivery” to K. Woodhouse’s address by an officer disguised as a UPS worker. While watching the residence police observed K. Woodhouse and another person leave separately in two of three vehicles parked at the residence shortly before the delivery. Murtezovski’s father’s car was the only vehicle left outside.
Murtezovski accepted the package, signing his own name. Ten minutes later police saw him leave the residence in a car with a gym bag. He was stopped and arrested for possessing cocaine for the purpose of trafficking. Police found the gym bag with three plastic bags containing the “cocaine” bricks still sealed and unopened. Murtezovski also had a marijuana joint and twenty grams of hashish.

Since the grounds for arrest were objectively justified, there were no s. 8 or 9 Charter breaches in a drug case, Ontario’s highest court has held.

In R. v. Murtezovski, 2009 ONCA 423, police intercepted a package addressed to “K. Woodhouse” that contained three bricks of cocaine. It was removed and replaced with three similarlooking bricks containing flour and 20 grams of cocaine in the wrapping of one of the bricks.

They arranged for a “controlled delivery” to K. Woodhouse’s address by an officer disguised as a UPS worker. While watching the residence police observed K. Woodhouse and another person leave separately in two of three vehicles parked at the residence shortly before the delivery. Murtezovski’s father’s car was the only vehicle left outside.

Murtezovski accepted the package, signing his own name. Ten minutes later police saw him leave the residence in a car with a gym bag. He was stopped and arrested for possessing cocaine for the purpose of trafficking. Police found the gym bag with three plastic bags containing the “cocaine” bricks still sealed and unopened. Murtezovski also had a marijuana joint and twenty grams of hashish.

He was charged with conspiracy to possess cocaine for the purpose of trafficking, possession of cocaine for the purpose of trafficking and possession of marijuana and cannabis resin for the purpose of trafficking. During a pre-trial motion the Ontario Superior Court of Justice dismissed Murtezovski’s arguments that his ss. 8 and 9 Charter rights were breached. The conspiracy charge was dismissed but Murtezovski was convicted of possessing cocaine for the purpose of trafficking and simple possession of marijuana and cannabis resin as an included offence in the count of possessing for the purpose of trafficking.

Murtezovski appealed to the Ontario Court of Appeal arguing police did not have reasonable grounds to arrest him. His submission was rejected.

It wasn’t contested that the officer who decided (Murtezovski) should be arrested subjectively believed he had reasonable grounds to arrest him, the court ruled.

The circumstances viewed in combination also met the objective standard required. (Murtezovski), who was the only person apparently in the house at the time of the delivery, after physically receiving the package, left shortly thereafter with a bag capable of carrying what had been delivered.

Murtezovski’s Charter rights were not breached and, even if they were, the evidence would not be excluded.